Citation Nr: 21022773 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-61 966 DATE: April 19, 2021 ORDER A rating in excess of 20 percent prior to June 1, 2017, a rating in excess of 10 percent from June 1, 2017, and a rating in excess of 20 percent from December 20, 2020, for degenerative arthritis of the lumbar spine with history of intervertebral disc syndrome (IVDS), is denied. A rating in excess of 20 percent prior to June 1, 2017, a rating in excess of 10 percent from June 1, 2017, and a rating in excess of 20 percent from December 20, 2020, for radiculopathy, right lower extremity, is denied. FINDINGS OF FACT 1. Prior to June 1, 2017, the Veteran’s service-connected lumbar spine disability was manifested by chronic pain, limitation of motion with pain, flare-ups, and limitations on bending, lifting, and prolonged sitting and standing walking; neither flexion limited to 30 degrees or less, nor ankylosis was shown, nor were there incapacitating episodes of IVDS. 2. Effective from June 1, 2017, to December 20, 2020, the Veteran’s service-connected lumbar spine disability was manifested by chronic pain and limitations on activities; however, flexion greater than 30 degrees but not greater than 60 degrees, combined range of motion not greater than 120 degrees, muscle spasm or guarding, and incapacitating episodes were not shown. 3. Effective from December 20, 2020, the Veteran’s service-connected lumbar spine disability has been manifested by chronic pain, limitation of motion with pain, flare-ups, and limitations on bending, lifting, and prolonged sitting and standing walking; neither flexion limited to 30 degrees or less, nor ankylosis has been shown, nor have there been incapacitating episodes of IVDS. 4. Prior to June 1, 2017, the service-connected radiculopathy, right lower extremity, was manifested by symptoms such as radiating pain, numbness, tingling, and hypoactive right knee reflex; however, there was no showing of impairment approximating moderately severe incomplete paralysis of the sciatic nerve. 5. Effective from June 1, 2017, to December 20, 2020, the service-connected radiculopathy, right lower extremity, was manifested by reports of radiating pain, but objective examination showed no reflex, strength, or sensory defects; thus, there was no showing of impairment approximating moderate incomplete paralysis of the sciatic nerve. 6. Effective from December 20, 2020, the service-connected radiculopathy, right lower extremity, has been manifested by radiating pain, numbness, tingling, and hypoactive right knee reflex; however, there has been no showing of impairment approximating moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to June 1, 2017, the criteria for a rating in excess of 20 percent for the service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5242, 5243. 2. Effective from June 1, 2017, to December 20, 2020, the criteria for a rating in excess of 10 percent for the service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5242, 5243. 3. Effective from December 20, 2020, the criteria for a rating in excess of 20 percent for the service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5242, 5243. 4. Prior to June 1, 2017, the criteria for a rating in excess of 20 percent for the service-connected radiculopathy, right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, DC 8520. 5. Effective from June 1, 2017, to December 20, 2020, the criteria for a rating in excess of 10 percent for the service-connected radiculopathy, right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, DC 8520. 6. Effective from December 20, 2020, the criteria for a rating in excess of 20 percent for the service-connected radiculopathy, right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1998 to May 2004. In October 2020, he testified at a virtual hearing before the undersigned Veterans Law Judge. In November 2020, the Board remanded this matter for further development. Increased Rating Disability ratings are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 20 percent prior to June 1, 2017, a rating in excess of 10 percent from June 1, 2017, and a rating in excess of 20 percent from December 20, 2020, for degenerative arthritis of the lumbar spine with history of IVDS. The Veteran contends he should be entitled to higher ratings for his service-connected lumbar spine disability, which has been rated under DCs 5242-5243. DC 5242 pertains to degenerative arthritis and is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The record shows his service-connected lumbar spine disability includes history of IVDS, thus, it may be rated under the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher rating. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, for a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, for a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5242. Under the Formula for Rating IVDS, a 10 percent rating is for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243. Effective February 7, 2021, during the pendency of this appeal, portions of the rating schedule addressing musculoskeletal disabilities were revised. The U.S. Court of Appeals for Veterans Claims (Court) has held that the law "precludes an effective date earlier than the effective date of the liberalizing...regulation," but the Board must still adjudicate whether a claimant "would receive a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation." DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Board notes there was no change to the rating criteria for DC 5242 or DC 5243, under which the service-connected lumbar disability is evaluated. Although the revised regulations narrow the scope of DC 5243 to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and DC 5242 is to be used for all other diagnoses, the Board notes that this does not provide a more favorable outcome to the Veteran, as his service-connected lumbar spine disability has been considered under both DC 5242 and DC 5243. Prior to June 1, 2017. Review of the record for this time period shows that on a VA examination in November 2013, the diagnosis was listed as IVDS, and date of diagnosis was 2004. The Veteran reported chronic lower back pain, mostly in the right lower lumbar area with his pain worse in the morning and improved with movement. Prolonged standing and sitting, and lifting more than 10 to 15 lbs. triggered back pain. He reported flare-ups of back pain to more severe levels over the past year and a half, approximately twice per month, lasting 1 to 3 days. He took ibuprofen and modified his activity level during flare-ups. Range of motion testing revealed forward flexion to 75 degrees, and extension to 20 degrees, with pain at the end ranges of motion. There was no additional limitation in range of motion after repetitive-use testing, and contributing factors of disability included less movement than normal and pain on movement. The Veteran had localized tenderness/pain to palpation of the right lumbar paraspinal area, but no guarding, muscle spasm, or atrophy. IVDS was noted, but the Veteran had no incapacitating episodes over the past 12 months. It was noted that the Veteran’s lumbar spine condition impacted his ability to work. The examiner also noted no flares were witnessed during or following the three repetitions of motion, and therefore, significant additional limitations of functional ability due to pain, weakness, fatigability, or incoordination could not be determined or described without speculation. VA treatment records show that in January 2014 the Veteran was seen to establish care and reported daily low back pain, worse in the morning and after sitting. He had no recent back treatment and did not take anything for pain. Examination revealed his back was nontender. In April 2014, the Veteran underwent a baseline functional capacity evaluation and a functional pain level of 9/10 was noted. He was able to climb a 4-step flight of stairs 8 times before reporting sciatic symptoms, and 10 times before stopping due to pain. He was able to do 75 percent of a full forward bend, at a steady, moderate pace, limited by pain. In an April 2014 statement, the Veteran reported his back had gotten a lot worse, and that he had constant back pain and could not straighten it when getting out of bed. He reported his back condition was causing problems with his daily activities, and that he could not stand for any length of time without severe pain. In a September 2016 statement, the Veteran reported his back problem had worsened. He noted that the VA examiner in 2013 stated his back had gotten better, but the Veteran disagreed and stated it took him about 2 hours to be able to walk upright when he woke up, that he could not stand longer than 10-15 minutes without having to sit down, and that he could not lift heavy objects. He reported pain every day and night, and that some days were worse than others. On a VA examination in November 2016, the Veteran reported ongoing low back pain, but denied flare-ups. Range of motion testing was normal, with flexion to 110 degrees and extension to 30 degrees. No pain was noted, including on weight-bearing. He performed repetitive use testing with no additional loss of function or range of motion. No tenderness, guarding, or muscle spasm was noted. Muscle strength was full. The examiner indicated that the Veteran did not have IVDS of the thoracolumbar spine. The examiner noted the Veteran’s report that he was totally disabled from back pain, but found his examination to be normal. The examiner also noted that the Veteran had no treatment, injections, or recent imaging, and that the examination did not support any back pathology. In response to the question regarding the Veteran’s service-connected IVDS and degenerative joint disease, the examiner selected this answer “[t]he service-connected diagnosis has resolved”. On review of the record prior to June 1, 2017, the Board concludes the preponderance of the competent evidence weighs against the grant of a rating in excess of 20 percent for the service-connected lumbar spine disability. In that regard, the evidence does not demonstrate ankylosis, forward flexion to 30 degrees or less, or incapacitating episodes lasting at least 4 weeks. Rather, the clinical and reported findings more nearly approximated the criteria for a 20 percent rating. 38 C.F.R. § 4.7. The Board acknowledges the Veteran’s contentions regarding inaccuracies in the 2016 VA examiner’s findings and opinion, however, the Board also notes that the contemporaneous record, although scant, shows discrepancies between objective findings in 2013 – 2014, and the Veteran’s report of his symptoms and limitations related to his service-connected lumbar condition. While the Veteran is competent to report his symptoms and limitations he experiences, the Board finds that the objective findings made do not meet or approximate ankylosis, forward flexion to 30 degrees or less, or incapacitating episodes lasting at least 4 weeks during the past 12 months. The Board has considered the Veteran's reports of worsening low back pain, pain on range of motion, flare-ups, and limitations on lifting and on standing and sitting for prolonged periods, as well as the potential additional limitation of functioning resulting therefrom. Although it is clear the Veteran experienced chronic low back pain and at least some functional limitations during the appeal period, the Board finds that there is insufficient objective evidence to conclude his pain and other symptoms have been associated with such additional functional limitation as to warrant a rating in excess of 20 percent. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, other than the separately service-connected radiculopathy of the right lower extremities, there is no objective evidence of other related neurological abnormalities. From June 1, 2017 to December 20, 2020. The Board notes that the June 1, 2017 effective date stems from a March 2017 rating decision which effectuated the proposed rating reduction to 10 percent, effective the first day of the month following a 60-day time frame from the date of notification of the action. The Veteran did not appeal the proposed reduction, thus, that effective date remains in place. Accordingly, in considering whether a rating in excess of 10 percent is warranted effective from June 1, 2017, the Board notes in October 2020, the Veteran testified that the 2016 VA examiner’s opinion that his back condition had improved was inaccurate. He testified his condition had not worsened since the 2016 examination, but that any range of motion hurt, including bending over to tie shoes or to shave. He reported that walking for five minutes caused his sciatica to act up, his foot started to go numb, and his back starts to hurt and get tight. He testified he could only stand for a couple of minutes, and constantly shifted his weight because it was extremely uncomfortable. He could not lift more than 5 pounds. He testified his back hurt every day, usually at level 8 on the pain scale, and that in the mornings the pain usually lasted an hour and a half to 2 hours. He testified that every 2 to 3 months he had serious episodes that lasted for 4 to 5 days, and pain was at level 10 throughout the time, and went from stabbing pain to feeling like a cue ball was right next to my spine. He testified that the slightest movement could trigger his back to hurt, and that he had to “walk crooked” to ease the pain. It was noted that he was not receiving any treatment for his back or radiculopathy, but reported he did exercises at home, including using a tennis ball on his butt cheek for sciatica and trying to stretch his back in the proper way and not injure himself. Based on a review of the record, the Board concludes that effective from June 1, 2017, the preponderance of the competent evidence of record weighs against the grant of a rating in excess of 10 percent for the service-connected lumbar disability. Despite the Veteran's lay reports of chronic low back pain, increased pain with movement, and limitations on walking, bending, and lifting, the competent evidence did not show findings that met or approximate forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion not greater than 120 degrees; or, muscle spasm or guarding. Therefore, even considering the Veteran's reports of ongoing low back pain and limitations, his noted functional loss due to increased low back pain with movement, and the degree of additional limitation reflected by increased pain on movement would not result in limitation of motion more nearly approximating forward flexion greater than 30 degrees but not greater than 60 degrees or a combined range of motion not greater than 120 degrees. 38 C.F.R. §§ 4.40, 4.45; see DeLuca v. Brown, supra. From December 20, 2020. Finally, the Board concludes that effective from December 20, 2020, the preponderance of the competent evidence of record weighs against the grant of a rating in excess of 20 percent for the service-connected lumbar disability. On a VA examination in December 2020, the diagnoses included degenerative arthritis with history of IVDS. The Veteran reported constant, sharp, low back pain, as well as pressure, stiffness, and stabbing pain at times, aggravated by standing or walking for more than 2 minutes, sitting for more than an hour, slight bending, lifting more than 4 pounds, climbing stairs, bending over to tie shoes, getting dressed, twisting, turning, coughing, and sneezing. The Veteran also reported monthly flare-ups, lasting 4-5 days to 2½ weeks, 10/10 in severity, with stabbing and nauseating pain that was debilitating and wore him out mentally and physically. He could not run or stand without pain. Range of motion testing revealed flexion to 75 degrees, extension to 15 degrees, and a combined range of 130 degrees, with pain on range of motion, which caused functional loss. The Veteran also had pain on weight-bearing, and localized pain on palpation, described as sharp and stabbing in the lumbar and right gluteal areas, with a severity of 10/10, causing the Veteran to grimace and be unsteady. Repetitive motion testing resulted in additional loss of range of motion, describe as limiting flexion to 65 degrees and extension to 10 degrees, and a combined range of motion of 115 degrees. The examiner also noted that pain, weakness, fatigue, and lack of endurance, significantly limited functional ability with flare-ups. The Veteran had guarding of the lumbar spine that resulted in abnormal gait or abnormal spine contour. Additional factors contributing to disability included disturbance of locomotion, and it was noted that he had an antalgic gait. It was noted that he had IVDS, but no episodes that required bed rest prescribed by a physician and treatment by a physician. The examiner indicated that his lumbar condition impacted his ability to work, that he last worked as a school bus driver in 2008, and that he could not sit, stand, or walk for prolonged periods of time, and twisting or turning to look back caused low back pain. An x-ray revealed mild osteoarthritic changes at levels L2 - L5. On review of the record from December 20, 2020, the Board concludes that the competent evidence of record does not demonstrate ankylosis, forward flexion to 30 degrees or less, or incapacitating episodes lasting at least 4 weeks. Rather, the clinical and reported findings more nearly approximated the criteria for a 20 percent rating. 38 C.F.R. § 4.7. The Board has also considered the Veteran's reports of worsening low back pain, severe flare-ups, and limitations on lifting and on standing and sitting for prolonged periods, as well as the potential additional limitation of functioning resulting therefrom. Although it is clear the Veteran experienced chronic low back pain and at least some functional limitations during the appeal period, the Board finds that there is insufficient objective evidence to conclude his pain and other symptoms have been associated with such additional functional limitation as to warrant a rating in excess of 20 percent. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, supra. The Board also notes that, for the duration of the appeal period, other than the separately service-connected radiculopathy of the lower extremities, there is no objective evidence of other related neurological abnormalities. 2. Entitlement to a rating in excess of 20 percent prior to June 1, 2017, a rating in excess of 10 percent from June 1, 2017, and a rating in excess of 20 percent from December 20, 2020, for radiculopathy, right lower extremity. The Veteran contends he should be entitled to higher ratings for his right lower extremity radiculopathy, which has been rated under DC 8520. Under DC 8520, incomplete paralysis of the sciatic nerve warrants a 10 percent rating if it is mild, 20 percent rating if it is moderate, a 40 percent rating if moderately severe, and a 60 percent rating if severe with marked muscular dystrophy. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Prior to June 1, 2017. Review of the record shows that on a VA examination in November 2013, the Veteran reported pain in the right sciatic nerve distribution, and stated that his entire right foot would go numb, and that the pain/numbness occurred a couple of times per month. He did not report right foot numbness on the day of the examination. Muscle strength was normal and right knee reflex was hypoactive. Sensory examination was normal in the right lower extremity. The Veteran’s symptoms of radiculopathy included mild intermittent pain and mild numbness in the right lower extremity. The examiner noted that the nerve root involved was the right sciatic nerve, and the severity was described as mild radiculopathy. VA treatment records show that in January 2014 the Veteran was seen to establish care and reported daily low back pain, radiating down his right leg. He had no recent back treatment, but did physical therapy in service. He did not take anything for pain. Examination revealed full strength in the lower extremities. On a VA examination in November 2016, the Veteran reported ongoing low back pain, without radiculopathy. On examination it was noted that he had no radicular pain or other signs or symptoms of radiculopathy. The Board concludes that prior to June 1, 2017, the preponderance of the evidence shows that the symptoms related to the service-connected right lower extremity radiculopathy were for the most part sensory, including radiating pain and numbness, characterized as mild; his radiculopathy therefore was, at most, equivalent to mild to moderate incomplete paralysis. Further, objective examination during this period shows no atrophy, and minimal to no reflex, neurologic, or strength defects. Thus, there has been no showing of impairment approximating moderately severe incomplete paralysis. 38 C.F.R. § 4.7. From June 1, 2017 to December 20, 2020. As noted above, the June 1, 2017 effective date stems from the rating reduction effective date. In considering whether a rating in excess of 10 percent is warranted effective from June 1, 2017, the Board notes in October 2020, the Veteran testified that the 2016 VA examiner’s opinion that his back condition had improved was inaccurate. He testified his condition had not worsened since the 2016 examination, but that walking for five minutes caused his sciatica to act up, his foot to go numb, and his back to hurt and get tight. He was not receiving any treatment for his back or radiculopathy, but reported he did exercises at home, including using a tennis ball on his butt cheek for sciatica. Based on a review of the record, the Board concludes that effective from June 1, 2017, the preponderance of the competent evidence of record weighs against the grant of a rating in excess of 10 percent for the service-connected radiculopathy, right lower extremity. Although the Veteran reported he had sciatica and numbness in the right foot, the Board notes that this shows that the symptoms related to the his service-connected right lower extremity radiculopathy are for the most part sensory and, at most mild, and equivalent to mild incomplete paralysis. Moreover, the Board notes that there is no other competent evidence during this period – medical or otherwise – that shows any impairment approximating moderately severe incomplete paralysis. 38 C.F.R. § 4.7. From December 20, 2020. Review of the record for this period includes a VA examination in December 2020, at which the Veteran reported tingling and numbness from the buttock down to the right foot, which persisted over time but now worse. For treatment, he reported waiting until the numbness and tingling decreases. His symptoms included mild paresthesias/dysesthesias and tingling in the right lower extremity. Full muscle strength was noted in the right lower extremity, and he did not have atrophy. Examination revealed the right knee had a hypoactive reflex, and decreased sensation in the right foot/toes, but no trophic changes were noted. The affected nerve was listed as the right sciatic nerve, and the impairment was described as mild incomplete paralysis. The examiner noted that the Veteran’s radiculopathy would impact his ability to work as a bus driver (which he last did in 2008) because he could not drive with numbness in the foot. Accordingly, the Board finds that prior to December 20, 2020, the preponderance of the evidence shows that symptoms related to the service-connected right lower extremity radiculopathy were for the most part sensory, including radiating pain, numbness, and tingling, characterized as mild. Additionally, objective examination during this period shows no atrophy or trophic changes, and minimal to no reflex, neurologic, or strength defects; thus, the Board concludes that since December 20, 2020, there has been no showing of impairment approximating moderately severe incomplete paralysis. 38 C.F.R. § 4.7 A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.